Citation Nr: 1513666
Decision Date: 03/31/15 Archive Date: 04/03/15
DOCKET NO. 10-32 420 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho
THE ISSUES
1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a right knee disability, to include as secondary to a service-connected left disability.
2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left disability.
3. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability.
4. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected left knee disability.
5. Entitlement to a rating in excess of 10 percent for a service-connected left knee disability.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
G. Slovick, Counsel
INTRODUCTION
The Veteran served on active duty from February 1970 to May 1971.
These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. That decision declined to reopen finally denied claims for service connection for a right knee and lumbar spine disability, and continued the Veteran's 10 percent disability rating for a left knee disability.
The issues of entitlement to a right knee disability, entitlement to a lumbar spine disability and entitlement to a disability rating in excess of 10 percent for a left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In an August 1989 rating decision, the RO denied service connection for a right knee disability; the Veteran did not appeal that decision or submit material evidence within the year following September 1989 notification of that decision.
2. Evidence associated with the claims file since the August 1989 denial relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a right knee disability.
3. In an August 1989 rating decision, the RO denied service connection for a lumbar spine disability and the Veteran was notified of that denial in September 1989; the Veteran did not appeal that decision or submit material evidence within the year following notification of that decision.
4. Evidence associated with the claims file since the August 1989 denial relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a lumbar spine disability.
CONCLUSIONS OF LAW
1. The August 1989 RO decision, which denied the Veteran's claim of service connection for a right knee disability, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).
2. New and material evidence has been received to reopen the claim of service connection for a right knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).
3. The August 1989 RO decision, which denied the Veteran's claim of service connection for a lumbar spine disability, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014).
4. New and material evidence has been received to reopen the claim of service connection for a lumbar spine disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Because the petition to reopen the claims for entitlement to service connection for a right knee and lumbar spine disability on appeal is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); see also 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2014).
A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108.
Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, while a November 2011 supplemental statement of the case is shown to consider the service connection claims on their merits, the Board must still consider the issue of whether new and material evidence has been received to reopen the claims.
New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).
VA is required to review for its newness and materiality only the evidence submitted by the claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. See Evans v. Brown, 9 Vet. App 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
As reflected in the Veterans Claims Assistance Act notice letter dated April 2009, the Veteran's original claims of service connection for right knee and lumbar spine disability were denied by the RO in February 1983 and September 1983 rating decisions, respectively. The claim for the right knee was denied because there was no evidence that the disability began during service or within one year thereafter, and the claim for a lumbar spine disability was denied because there was no evidence of chronic pain during service. A review of the evidence of record at that time also indicates that there were no diagnoses related to either claimed disability.
Thereafter, the claims were again denied in an August 1989 rating decision. The decision noted that the Veteran had an arthroscopy on her right knee in March 1989. However, there was no evidence relating to a relationship between either disability and the Veteran's military service. The Veteran did not file a notice of disagreement with either claim, nor was any material evidence received during the remainder of the appeal period. Therefore, the August 1989 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).
In April 2009, the Veteran submitted the instant request to reopen the claims of service connection for a right knee and lumbar spine disability.
The evidence associated with the claims file since the August 1989 rating decision includes a November 2011 VA spine and joint examinations and more recent statements from the Veteran. This evidence is "new" because it was not previously submitted to agency decision makers.
The Board finds that the statements by the Veteran regarding how her injury occurred and the VA examination which contains diagnoses of degenerative disc disease of L4-5 and SI and degenerative changes in the right knee relate to unestablished facts necessary to substantiate the claims, namely diagnosed disabilities. Moreover, the evidence raises a reasonable possibility of substantiating the claims of service connection for a right knee and lumbar spine disability. Having found that new and material evidence has been added to the record, the Veteran's claims are reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claims are further addressed in the remand section.
ORDER
As new and material evidence has been received, the claim of service connection for a right knee disability is reopened and, to this limited extent, the appeal is granted.
As new and material evidence has been received, the claim of service connection for a lumbar spine disability is reopened and, to this limited extent, the appeal is granted.
REMAND
A September 2010 VA examination report noted that the Veteran was in receipt of widow's pension, Social Security Administration (SSA) disability benefits, and VA pension. The most recent November 2011 VA examination report suggests that the Veteran is in receipt of SSA income benefits due to eye problems and arthritis of the knee. It was not specified with the Veteran's right or left knee was affected. Because there is an indication that the Veteran might be in receipt for SSA benefits due to her knees, VA must attempt to obtain those records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) see also Golz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010).
Additionally, during the September 2010 VA examination, the Veteran reported that she received repair of her right knee at the VAMC in Spokane in either late 1990 or early 1991. However, these records have not been associated with the claims file. Therefore, on remand, efforts should be made to obtain these outstanding records. VA records are considered part of the record on appeal since they are within VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Lastly, although the November 2011 VA examiner addressed whether the Veteran's claims were caused or aggravated by her service-connected left knee disability, the examiner did not address whether either disability was directly related to her military service. The Board observes that the Veteran has consistently maintained since the early 1980s that she injured her right knee and back at the same time that she injured her service-connected left knee during service. Accordingly, a remand for an opinion that addresses this contention is necessary.
Accordingly, the case is REMANDED for the following actions:
1. Request the Veteran's SSA records, to include medical records and disability determinations. All efforts to obtain the records should be documented, a negative response should be requested if no records are available.
2. Obtain and associate all relevant VA treatment records dated from 1990 to 2007, and then from 2010 to the present, from the Spokane VAMC and the associated community based outpatient clinics. If any requested records are not available, or if the search for any such records otherwise yields negative results, the Veteran and her representative should be notified and the record clearly documented.
3. After the above development has been completed, either return the November 2011 VA examination report for an addendum or schedule the Veteran for a VA examination to evaluate her claims for service connection for a right knee disability and a lumbar spine disability on a direct basis. A copy of the claims folder and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items:
Based on a review of the claims folder and the examination findings, including the service treatment records, private treatment reports, VA treatment reports, the examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current right knee and lumbar spine disability is causally or etiologically related to her symptomatology in military service (February 1970 to May 1971) as opposed to its being more likely due to some other factor or factors. In particular, the examiner should address the Veteran's contention that she injured her right knee and lumbar spine in 1971 while lifting a patient. The examiner should review all relevant treatment records, to include those dated in the 1970s and 1980s.
Additionally, the examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that any current right knee and lumbar spine disability has been aggravated by her service-connected left knee disability.
For purposes of this analysis, 'aggravation' is defined as a permanent worsening of disability beyond that due to the natural disease process.
(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2014), copies of all pertinent records in the claims file, or in the alternative, the claims file, must be made available to the examiner for review.
4. After the above development in 1-2 has been completed, schedule the Veteran for a VA orthopedic examination by an appropriate medical professional to evaluate the current nature and severity of her service-connected left knee disability. The entire claims file must be reviewed by the examiner. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. The examiner should address how the left knee affects the Veteran's daily life and ability to work.
5. Finally, readjudicate the appeal, to include the reopened service connection claims. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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S. HENEKS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs